Judge Ronald F. Frank, Case Number: 19TRCV00989, Date: 2025-01-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 19TRCV00989, Date: 2025-01-21 Tentative Ruling

Case Number: 19TRCV00989 Hearing Date: January 21, 2025 Dept: 8

Tentative Ruling

HEARING DATE: January 21, 2025

CASE NUMBER: 19TRCV00989

CASE NAME: DML Enterprises, LLC v. Augustin Moreno, et al.

MOVING PARTY: Plaintiff/Cross-Defendant, DML Enterprises, LLC

RESPONDING PARTY: Defendant, Augustin Moreno; Robert Pedersen (No Opposition)

TRIAL DATE: January 27, 2025

MOTION:
(1) Plaintiff’s Motion for an Order Stating that This Action Shall Continue Against the Successor of a Deceased Party

(2) Continued FSC

Tentative Rulings: (1) DENIED without prejudice. The moving papers were filed without the minimum 16-court-day notice to the opposing party. The motion is also problematic on the merits because it seeks to add a new party defendant 6 days before trial without giving the proposed new party her statutory right to 30 days in which to file a responsive pleading.

(2) The FSC may be needless if this motion is to be re-filed. The Court tentatively would consider a stipulation or even oral application to continue the trial if Plaintiff believes Ms. Kellogg is a necessary or indispensable party.

I. BACKGROUND

A. Factual

On November 5, 2019, Plaintiff, DML Enterprises, LLC (“Plaintiff”) filed a complaint against Defendants, Augustin Moreno, Robert Pedersen (collectively, “Defendants”), and DOES 1 through 100. The complaint seeks a permanent injunction and arises out of a property line dispute between the parties.

On April 3, 2020, Robert Pedersen, individually and as Trustee of the Pedersen Family Trust dated March 9, 2018 filed a cross-complaint against Cross-Defendants, DML Enterprises, LLC, David Leeper, all persons unknown claiming any legal or equitable right, title, estate, lien or interest in the Real Property Described in the cross-complaint adverse to cross-complainant’s title, or any cloud on cross-complainant’s title thereto; and ROES 1 through 100. The cross-complaint alleges causes of action for: (1) Quiet Title (verified); (2) Trespass; (3) Intentional Infliction of Emotional Distress; (4) Elder Abuse; and (5) Financial Elder Abuse.

Plaintiff and Cross-Defendant, DML Enterprises, LLC now file a Motion seeking to maintain or continue this action against the late Robert Pederson’s Successor, who is apparently Ms. Kellogg.

B. Procedural

On December 30, 2024, Plaintiff and Cross-Defendant, DML Enterprises, LLC files a Motion for an Order Stating that this Action Shall Continue Against the Successor of a Deceased Party. To date, no opposition brief has been filed but defense counsel Daniel Street filed a declaration in opposition on January 15, 2025, three court days and six calendar days before the hearing. Code of Civil Procedure section 1005(b) requires papers opposing a motion to be filed and served at least nine court days before the hearing. Filing an opposition declaration so close to the date of the hearing deprives the moving party of the ability to file a reply. Perhaps in anticipation of an argument that his opposing papers were filed tardily, Mr. Street’s declaration stated that the notice of this motion was served by U.S. Mail on December 30, 2024. Section 1005(b) requires moving and supporting papers on a motion to be filed and served at least 16 court days before the hearing, which is increased by five calendar days if the moving papers are served by mail. Given the intervening weekends, New Year’s and MLK Day holidays, the moving papers were served 14 court days before the hearing without taking into account the additional five-day period for service by mail. The moving papers were thus tardily served, depriving Defendants of the right to file opposing papers nine court days before the hearing.

II. ANALYSIS

A. Legal Standard

“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc. §377.31.)

Code of Civil Procedure section 377.32 provides the following:

(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent’s name.

(2) The date and place of the decedent’s death.

(3) “No proceeding is now pending in California for administration of the decedent’s estate.”

(4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

B. Discussion

This Court DENIES Plaintiff’s Motion, without prejudice, as the declaration does not contain the requirements outlined in Code of Civil Procedure section 377.32. For example, in violation of Section 377.32, subdivision (a)(2) and subdivision (c), the declaration does not state the date and place of decedent, Robert Pedersen’s death, and it does not attach a certified copy of the death certificate. The declaration also fails to confirm that “[n]o proceeding is now pending in California for administration of the decedent’s estate” (Code Civ. Proc., § 377.32, subd. (a)(3).) As such, the Court cannot grant this motion until a sufficient declaration is filed.

The Court would also deny the motion on procedural grounds because there was a lack of sufficient notice to the opposing parties as required by Code of Civil Procedure section 1005(b). Further still, the motion is problematic in that it seeks to add or substitute a party defendant less than a week before the trial, which does not give Ms. Kellogg the statutory time in which to file a responsive pleading were she to be added as a party defendant. Defense counsel raised the issue of Plaintiff having failed to name Ms. Kellogg as a defendant or as an indispensable party in a May 30, 2023 status report.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for an Order Stating that this Action Shall Continue Against the Successor of a Deceased Party is DENIED without prejudice. Defendant shall give written notice of the Court’s ruling.